Undue process, unequal protection

By Atty. Jose Mari B.F.U Tirol

(The author is the dean of the College of Law of the University of San Agustin)

In his last SONA, the President again taunted the International Criminal Court, and called on Congress to pass a law that would provide free legal assistance for law enforcers and military personnel.

Does the President who consistently expresses a preference for character assassination and extrajudicial “solutions” to criminality and terrorism have the moral ascendancy to demand protection from the law for himself and for law enforcers who act pursuant to his statements?

In fairness to him he does have legal basis to do so. Although the irony is strong and the hypocrisy is undeniable.

There is no question that he and the members of the armed services are entitled to the right to due process. There is also no question that the President has been known to invoke the law, but only when it suits his purposes. But there is also no question that everyone, whether president, policeman, or plebeian – especially the latter – enjoys the constitutional presumption of innocence, particularly against the awesome powers of the state.

Furthermore, it is always the burden of the accuser, whoever he may be, to prove his allegations. That is what the Rule of Law and the right to due process are about.

Yes the President is a lawyer, a former prosecutor, a former local chief executive, and a former legislator. But it does not automatically follow that he knows the law, or that he acts in accordance therewith. To argue otherwise is to do so bereft of logic and common sense.

Those who invoke the President’s membership in the Bar like a magic spell that justifies everything he says and does, are not advocates of the Rule of Law. They highlight his being is a lawyer for the simple reason that his means, methods, and alleged aims are, for the moment, similar to theirs. They do not even give a whit about the fact that the victims of his so-called war on drugs and on terror are also entitled to the very same rights as he.

Now if these persons are truly for the Rule of Law, then they should rejoice at the recent unanimous action of the Supreme Court en banc in Pangilinan v. Cayetano. While the Court declared as valid the country’s withdrawal from the Rome Statute and the International Criminal Court effective March 17, 2019, it also affirmed that the Rome Statute still covers acts committed from November 1, 2011 until that date. Unsurprisingly, the President still contends that the Rome Statute is not binding even during the said period. And refuses to avail of his right to due process, despite his insistence thereon.

Yes, the President is a lawyer. And while he is entitled to his own opinion, he is not entitled to his own facts and legal conclusions. It is not he, but the Supreme Court that is the final interpreter of all legal questions.

Any self-respecting lawyer who is worth his salt and is true to his oath knows that it is legally erroneous and duplicitous to argue that the Philippines had validly acceded to the Rome Statute, after assiduously complying therewith for purposes of withdrawal therefrom.